HKSAR v. Gursewak Singh and Others

DCCC 595 & 905/2017 (Consolidated)

[2018] HKDC 1082

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NOS. 595 & 905 OF 2017

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Reasons for Verdict

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The Charge

1.D1 – D3 deny a charge of handling stolen property. 

The Prosecution case

2.PW1 Dholwani was a mobile phone merchant.  He had two suitcases of business money in cash brought to him from India by a female XUAN.  His driver Sunny picked her up together with the two suitcases at the Hong Kong airport.  They met up with PW1 at the ground pavement of PW1’s residence at Man Yue Street, Hung Hom.  PW1 unlocked the silver-coloured suitcase to take a look at the contents.  He did not open the red suitcase although it was not locked.  After unloading the two suitcases on to the ground, he took possession of them.  Sunny drove XUAN away in the car.  PW1 was soon attacked by some hard object held by one male in a group of 5 – 6 Indian/Pakistani males.  He tried to hold on to the silver-coloured suitcase as he lay face-down on the ground as they assaulted him by fists and kicks.  They took hold of both suitcases and boarded a getaway car.   

3.He got onto his feet and ran up.  At the moment the car stopped for the red traffic light, he used his mobile phone to take a picture of the car and its rear plate “TA 3590” (P312).  He called the police.  The police arrived in a police van after about 4 minutes.  He boarded the police van and told the officers on board that there was a GPS app installed in the silver-coloured suitcase connected to his mobile phone and activated for tracking the whereabouts of the silver-coloured suitcase.  He also showed them a photo of the suitcases on his mobile phone.  Following the GPS signal, the police van stopped in Tai Kok Tsui and the police walked him to a red suitcase on the pavement outside a building.  There were already police officers present.  He recognized the red suitcase as his robbed property.  Later in the police station he took a thorough look at the contents, which comprised wads of banknotes belonging to him[1]. 

4.As regards the silver-coloured suitcase, the police walked him up to the 6^th floor of the same building. Concealed from direct sight by an abandoned bed mattress on the staircase was the silver-coloured suitcase.  He recognized it as his own.  Later, in the police station he had a thorough look into the contents in the police station and found cash which belonged to him. 

5.PW2 Jacky MAK was the driver of a car.  He stopped under Fat Kwong Street flyover and saw several South East Asian males hitting PW1 on the ground.  One of them had a knife.  They boarded a car “TA 3590” in front of him and left by turning right.  One of them got off the car to run when TA 3590 was blocked by a taxi at a red traffic light.  He took a photo of the car plate and reported the incident to the police.  It was 0758h according to the CCTV on the street.  

6.PW3 LAM was on the pavement when he saw several South East Asian males hitting PW1 on the ground.  One of them had a knife.  They forcefully took 2 suitcases from PW1, 1 of them silver-coloured, held by PW1 on the ground upon being attacked by them.  The attackers took the 2 suitcases and boarded a getaway car “TA 3590”. 

7.PW4 was the exhibit officer.  He arrived at ground floor of 16 – 18 Larch Street and saw the red suitcase guarded by a police officer. PW1 recognised it as his own.  At the back staircase between 6/F and 7/F behind a mattress was the silver-coloured suitcase guarded by police officers. 

8.PW5 WPC 6893 responded to police console instructions to arrive at the scene of PW1’s reported robbery at ground floor of 31 Man Yue Street.  At 0805h she arrived with colleagues in a police van and got off to get instructions from PW1.  About 5 minutes later (at 0810h), she boarded the police van and proceeded towards KCR Station Hung Hom as indicated by PW1’s mobile phone connected to the GPS tracking device installed in the silver-coloured suitcase.  When she got back to the police van with PW1, she looked at the GPS signal and instructed the driver and other EU cars to go to the location to assist her.  Exh. P315 was the sketch of the route from Location 1 to Location 7.  She ended up in the vicinity of 16 – 18 Larch Street where the GPS signal became static.  Some police officers were there already. She took PW1 to identify the red suitcase on the pavement at ground floor of 16 – 18 Larch Street. 

9.PW6 PC13607 was sitting at the second row on the right side of EU23 police van.  His car arrived at the junction of Larch Street and Fir Street when he saw 3 – 4 Indian/Pakistani males in front of him through the windscreen.  One of them was in a checked shirt and blue jeans, being the last walking in the group (later confirmed as D1).  D1 was towing a red suitcase. The lighting condition was sufficient, there was no obstacle or obstruction and the traffic was light.  When he alighted, the group was about 20 metres on his right hand side.  He regarded them as a group as they were only 1 to 2 paces apart from one another when pedestrians were sparse at that time.  If they were not acquainted or not in a group, they would not be so close together.  The group looked back at him and made eye contact with him.  D1 immediately abandoned the red suitcase there and ran for his life towards Tong Mi Road. The others in the group ran as well.  He ran after D1 in particular. Maintaining a distance of 5 – 7 metres in the chase, he had not lost sight of D1 until he stopped D1 at 28 Bute Street near Canton Road.  After subduing D1 with the assistance of other colleagues, he arrested and handcuffed D1.  It was 5 minutes into the chase.  He marks on Exh. P316 EU23’s stopping position, the group’s initial position and the route of his chase after D1. 

10.In the identification parade on 17/3/2017 he identified D2 as one in the running group.  He did not mention in his witness statements dated 13/3/2017 and 16/3/2017 that D2 had a very big and very high nose.  When he saw D2 in the identification parade on 17/3/2017, he remembered having seen D2 in the chase as the one with a very big and very high nose.  He omitted to mention such features in his witness statement dated 20/3/2017 which gave an account of the identification parade. 

11.PW7 Sgt 54733 was the officer in charge of EU23.  He made similar observations of the 3 – 4 males at Larch Street as PW6, who shouted that someone was towing a suitcase.  He was the last one to chase the group as he had to go round the front of his police vehicle when alighting.  He chased the one wearing a blue top (later confirmed as D3) not chased by his colleagues, into an industrial building at Arran Street.  He was holding a walkie-talkie in his left hand close to his mouth when he sought assistance from the console as he chased D3 into the industrial building.  Outside the refuse room of the industrial building, he also drew his revolver to protect himself as he was alone pending arrival of reinforcing colleagues and he had been aware from console information that the group was armed with knives and sticks.  He had seen D3 putting his hand to the waist at times during the chase.  When his colleagues arrived, he went with them into the refuse room. It transpired that the refuse room could lead to the lobby of a building through which D3 could flee anywhere.  They lost sight of D3.    

12.In the identification parade on 17/3/2017, he identified D2 as one in the group based on his look like a Middle Eastern man, his dark complexion and close eye brows.  He did not mention such features in his witness statement.  He had seen this person for 2 – 3 times for about 1 second each at Larch Street in the early part of his chase.  In his witness statement dated 20/3/2017 giving an account for his identification parade, he mentioned it was an Indian/Pakistani male.  He explains that he no longer referred to that person as looking like a Middle Eastern man as some colleague had a chat with him after the identification parade and before his witness statement to the effect that that person he had identified was an Indian/Pakistani man.  He did not think this chat was such an important matter to be included in his witness statement. 

13.PW8 PC1359 alighted from EU23 at the junction of Larch Street and Fir Street when PW6 shouted that a male was towing a suitcase.  He saw 4 Indian/Pakistani males in a group.  The one walking last was towing a red suitcase.  He alighted from the vehicle to approach the group.  When the group saw him, the group began to run.  That male put down the red suitcase.  He chased after that male and another in the group as these two split themselves from the group soon.  Soon he focused on chasing that male (not another male) into an alley at 66 Tong Mi Road.  As he saw that PW6 was also chasing that male (ie D1) much closer, he (PW8) returned to the spot of the red suitcase.  A few minutes later, a police officer in reinforcement came.  PW8 inspected the suitcase and its contents. PW5 arrived in EU36 with PW1.   PW1 inspected the suitcase and its contents.  He (PW8) handed over the suitcase and the scene to another police officer. 

14.He had looked at each of the 4 men in the group for 2 – 3 seconds at first glance.  There was another look at them respectively for 1 – 2 seconds.  He estimates to have eye contact with D2 for several times, 8 – 9 seconds in total.

15.In the identification parade on 17/3/2017, he was able to identify D2 as one in the running group.  There was no mention of D2’s special features in his witness statements before and after the identification parade.    

16.In the identification parade on 2/8/2017, he was unable to identify D3. 

17.From P303 Photo 4 it can be seen that there was a stretch of metal railing between the pavement and the road wrapping round the junction of Larch Street and Fir Street.  PW8 says that after alighting from the police van he got onto the pavement of Fir Street where the metal railing ended.  He did not lose sight of the group as he alighted from the right middle door and got onto the pavement. 

18.CCTV Clips 26 and 27 showed there were 3 – 4 males running together when being chased by PW6, 7 and 8 at Larch Street. 

19.PW9 PC10618 arrived at 16 – 18 Larch Street and saw the red suitcase on the pavement guarded by some police officers.  There was no elevator in the building.  He walked up the building to try to find the silver-coloured suitcase.  Half way between the 6^th floor and the 7^th floor, he saw the silver-coloured suitcase behind a mattress. 

20.A special-issue hearing is conducted to determine the admissibility of evidence relating to D2 at an identification parade taken part by witnesses PW1, PW6, PW7 and PW8 relating to the robbery of 13/3/2017.  D2 elects not to give evidence or call witnesses for the special-issue hearing. 

21.The relevant facts were that PW12 CIP Wong presided over the identification parade of D2 on 17/3/2017.  She had served the standard Notice to a Suspect (P322) which contained a suspect’s rights at the identification parade.  The Identification Parade Book (P323) recorded that D2 was voluntary to participate in the identification parade.  PW10 DPC11225 prepared the identification parade room equipment and stationery.  PW13 DSPC58912 led PW1, PW6, PW7, PW8 each in turn to the identification parade.  D2 now seeks to exclude it from evidence on the ground of unfairness as follows:

(1) PW12 failed to ensure that the actors were all about as tall as D2, who is conspicuously shorter, or to suggest they be seated to conceal the difference in height;

(2) She failed to ensure that the actors were all of approximate body build as D2, who is conspicuously slimmer, or to suggest they use blankets to cover their body to conceal the difference in body build;

(3) She failed to ensure that the actors were all with approximate hairstyle as D2 (who had a distinctive hairstyle, ie quiff with shaved sides with a white line at the top edge of the shaved sides around the base of the crown), or to suggest they wear a shower cap to conceal the difference in hairstyle;

(4) In breach of the Notice to Suspect, she advised D2 that he could only exclude one actor looking different.

22.PW12 found the actors and D2 comparable in general appearance.  I assess her answer by viewing the video footage of the identification parade.  It was taken from a high angle at each side of the parade.  I have carefully compared the actors with D2 in general appearance. At some junctures I look at one frame at a time and magnified it.  I can see that there was no marked difference in hairstyle (most clearly at between 11:05 – 11:06 as he walked up and turned about to take his standing position and his quiff with shaved sides had clearly been combed down on the sides so that there was nothing like shaved sides with a white line at the top edge of the shaved sides around the base of the crown).  Besides, the difference in height or body build was not prominent.   

23.Ms. Mohamed submits that PW12 ought not to have advised D2 that he could only exclude one of the actors.  I agree that it was a breach of para. (4)(b) of the Notice to Suspect, which did not prescribe any limit of number.  However, there is no evidence or suggestion, in the nature of evidential burden, as to how this breach had adversely affected D2, so that he would have excluded other actors or walked out from the parade. 

24.It is true that PW12 did not suggest to D2 to adopt measures like shower caps to conceal hairstyle, sitting to conceal height or blankets to conceal body build in order to bring him on a par with the actors in general appearance.  But I share the same observation as PW12 that D2 did not stand out from the actors in general appearance, hence these measures were not necessary. 

25.D2 also complains that before the identification parade, PW10 had taken a photo of D2 when D2 was in the detention cell on the pretext of arranging for similar-looking actors for D2.  In cross-examination by D2’s counsel, PW10 and PW12 deny the photo-taking allegation whereas PW6, PW7 and PW8 deny having seen any of D2’s photo before the identification parade.  I believe their evidence.    

26.I am of the view that the prosecution has proved beyond reasonable doubt that the identification parade relating to D2 was conducted in a fair manner.

27.PW11 retrieved a cross body bag (P6) from the under-bush in the garden of Lime Stardom at 1 Larch Street.  P6 bore D2’s DNA.  It contained a Wellcome receipt dated 12/3/2017 which bore D2’s fingerprint. 

28.D1 was arrested on 13/3/2017 by PW6 outside 28 Bute Street.  D2 was arrested by DSPC 22783 at Room B8, 3/F Po Teck Mansion, 27 Chi Kiang Street, To Kwa Wan, Kowloon on 15/3/2017.  D3 was arrested on 15/7/2017 by PC11888 in the office of the Duty Immigration Officer at 5/F, Terminal 1, Hong Kong International Airport. 

The Admitted facts

29.A neighbour and a caretaker of the building where D3 lived could identify D3 (Male C) from the clip pictures showing Male C running on the street and into the building at the time PW7 was chasing Male C.  

30.The police interviewed D1 on 13/3/2017.  When asked about the three other South Asian males seen by PW6 outside 16 – 18 Larch Street, he replied that he did not know who they were. 

31.The police interviewed D3 on 15/7/2017.  He said he did not know anything about D1.  D3 was the tenant of Room B8, 3/F Po Teck Mansion, 27 Chi Kiang Street, To Kwa Wan, Kowloon.  D2 visited this flat occasionally. 

32.No DNA or fingerprints of D1, D2 and D3 were found on the red suitcase (P1) and the silver-coloured suitcase (P2) or their contents. 

33.D3 took part in an identification parade on 2/8/2017.  PW1, PW6, PW7 and PW8 were unable to identify D3 as a person they had seen on 13/3/2017. 

34.The last 4 prosecution witnesses shed light on the time difference between the real time and the clock time on the CCTV footage.  I will return to this issue about the real time and the clock time later. 

The Identification of D1

35.D1 was arrested by PC13607 after a short chase. 

The Identification of D2

36.PW6, PW7 and PW8 had a glance at D2 for a few seconds in total with some eye contact with him.  A person was seen dropping a bag in the underbush of a private park in the vicinity of the chase a matter of seconds after the chase started.  The bag was retrieved and analysed to be consistent with D2’s DNA.  A Wellcome supermarket receipt of a transaction at 2037h on 12/3/2017 was found in the bag.  The receipt was analysed to be consistent with D2’s fingerprint.  The bag is produced in court as Exh. P6.  CCTV Clips 1 – 11 capture D2’s presence at various locations from 20:37:01 on 12/3/2017 at Wellcome supermarket, No. 66 To Kwa Wan Road to 06:36:03 on 13/3/2017 at the ground floor lobby of Po Teck Mansion, No. 27 Chi Kiang Street.  Each clip invariably shows a bag, which looks very similar to Exh. P6, slinging over D2’s shoulder. 

37.Clip 27 captures PW6 – 7 chasing 3 males at 08:24:54 at No. 12 Bedford Road. 

38.Clip 42 captures a male, who looks very similar to D2, running with a bag, which looks very similar to Exh. P6, slung over his shoulder at 08:23:27 running into the park at Lime Stardom, No. 1 Larch Street.  Clip 43 captures a male running and discarding a bag at the bush inside near the exit of the park at Lime Stardom, No. 1 Larch Street. 

39.D2 was arrested 2 days after.  

The Identification evidence on D2 on the CCTV footage

1) Clip 10 captures D2 to be of medium height and thin build with a quiff with shaved sides in black long sleeve jacket, dark pants, black shoes, and sling bag taking lift going out from Po Teck Bldg. His jacket had 2 triangular pattern of sleek surface at the front and back of each shoulder about 5 x 8 x 10 inches (visible at Clips 1 – 11);

2) Clip 42 captures a male of medium height and thin build with a distinct hairstyle, ie quiff with shaves sides similar to D2’s hairstyle in black long sleeve jacket, dark pants, black shoes, and a bag flapping at his bottom running into the park of Lime Stardom situated at the junction of Fir Street and Tong Mi Road.

3) Clip 43 captures what the same male did at the park in the next 15 seconds. He discarded a bag into the bush on his left hand side. He was walking fast towards the exit on the right hand side when 2 police vehicles passed by Tong Mi Road in turn, he turned back and looked through the gaps between the trunks of the trees at Tong Mi Road. As soon as the 2 police vehicles passed, he left the park.

4) The park was at a short walking distance from where PW6 – 8 alighted from EU23 to begin the chase.

5) I am sure that it was D2 there. This is established by the outward appearance of the person entering and leaving the park, the bag and a Wellcome supermarket receipt dated the evening before, both retrieved by the police. The bag had D2’s DNA and the receipt had D2’s fingerprint. These aspects form a set of circumstantial evidence to implicate D2 as one in the group being chased by PW6 – 8.

6) I am aware that PW6 – 8’s identification of D2 at the identification parade may be attacked, as a matter of weight, for the short duration of observation. I am aware of the Turnbull guidelines. But their observation was not the only evidence to identify D2.

7) Putting together all the evidence, I am sure that D2 was one in the group being chased by PW6 – 8.

40.CCTV Clip 3 stilled photo of 12/3/2017 shows D2 and D3 together with no one else took the lift to leave Po Teck Mansion, No. 27 Chi Kiang Street.   CCTV Clip 6 stilled photo of 12/3/2017 shows D2 and D3 together with no one else took the lift to leave Po Teck Mansion, No. 27 Chi Kiang Street. 

The identification of D3

41.D3 was arrested on 15/7/2017.  None of PW6 – 8 could identify D3 at the identification parade on 2/8/2017. 

42.CCTV Clip 10 stilled picture captures him taking the lift down to the ground floor lobby of Po Teck Mansion at 06:35:54 on 13/3/2017 in a royal-blue short sleeved round-necked T-shirt with words “TRUE TO THIS” printed at the front and “VOLCOM printed at the back untucked over his camouflaged trousers wearing black thongs. 

43.A neighbour Ms CHENG and a security guard Mr WAN at Po Teck Building could each recognize from CCTV Clip stilled photo 34 that the man facing the camera was D3.  That clip featured the man being chased by PW7 on 13/3/2017. 

44.I am sure that D3 was the one in the group being chased by PW6 – 8. 

Clock Time vs Real Time

45.While dealing with D2’s and D3’s half-time submissions, this Court has the opportunity of reviewing the prosecution evidence in detail.  It has come to my attention then that it is controversial as to what the last column under “Time” in para. 5 of Admitted Facts I (P3) means for Clips 1 – 46 extracted from 9 sources.  It is not specified whether, as the prosecution now says, it means the time stated on the screen of the footage (I call this “the Clock Time”), which, in the case of some clips, was different from, the real time (I call that “the Real Time). 

46.The defence argue that the Real Time has been their understanding when they agree para. 5 of Admitted Facts I. They further argue that MFI-1 or its emended version MFI-9[2], which adjust  the Clock time to equate with the Real time, is not evidence itself and they can simply ignore its contents.  The argument for the prosecution is that it can only mean the Clock Time when we consider the Prosecution Opening. 

47.There is no half-time submission by D1.  D2’s and D3’s detailed full written half-time submissions never mention this argument at all.  It is clear that counsel for D2 and D3 are not aware of this discrepancy or its significance until I point this out for clarification.  More notably, D2’s counsel has relied on MFI-1 at 5 different junctures in her full written half-time submissions[3]. This contradicts her own oral argument that MFI-1 is meaningless.     

48.The prosecution seeks leave to reopen to synchronise the Clock Time with the Real Time amid objection from the defence.  D2’s and D3’s counsel complain about further dates to be set aside by this Court for the remainder of the trial in the event of a ruling of a case to answer for all 3 defendants after the reopened prosecution case is closed.  It is a misfortune in this court that only D1’s counsel, Mr. Sherry, who, in fairness, is willing to point out and face the fact that my order is understood to be “tentative” in nature.  Other defence counsel simply ignore this fact and complain about a prejudged case to answer.  They also ignore the fact that D1 does not submit no case to answer. I think it only pragmatic to assign further dates to at least accommodate D1’s defence case.     

49.Mr. Sherry for D1 argues that the prosecution should be refused leave to reopen because para. 5 of Admitted Facts I must mean the Real Time.  I reject this argument because the prosecution’s stance on the sequence of events has been abundantly clear and consistent from the outset in the form of the prosecution’s opening. Such defence argument has to be based on the prosecution portraying events in reverse order, such as the group being chased by the police officers at the scene of Tai Kok Tsui before their police van arrived, among other anomalies. I regard such to be an impossible interpretation of para.5 of Admitted Facts I. 

50.Despite the general submission that there is much prejudice to the defence, there is not a single prejudice actually identified to this court.  In my view, it will only be fair to all parties to have the Clock Time and the Real Time synchronized. Thus I grant leave to the prosecution to reopen. 

No-case submissions on behalf of D2 and D3

51.Counsel for D2 and D3 re-submit no-case to answer based on the tenuous quality of prosecution evidence.  I rule against them.  Counsel for D1 again does not have any no-case submission. 

The Defence Case

52.I rule a case to answer for D1 – D3.  They elect not to give evidence or call witnesses. 

My View of the Case

The Identification of the Defendants

53.PW1 never lost sight of D1 until D1 was arrested.  Both D2 and D3 can be seen from different junctures of the CCTV footage.  D3’s images are of a high quality.  D2’s images are sufficiently clear and D2 can also be linked by the bag he discarded in the garden of Lime Stardom situated proximate to the route of the chase.  The bag itself and a Wellcome receipt inside contained his DNA/fingerprint. 

What Suitcases are recovered?

54.Mr. Sherry (in para. 11 of his Closing Submissions for D1) submits that there is no evidence that those recovered were the same suitcases that were stolen from PW1.  I disagree with this submission.  PW1 himself took the two suitcases from the dickie of his driver’s van to the pavement.  He had not opened the red suitcase to inspect the contents but he had had ample opportunity to look at the exterior of both suitcases[4]. Later, in the presence of the police, he was able to identify the two suitcases without difficulty.   

The Silver-coloured suitcase

55.It is true that as regards the silver-coloured suitcase, there is no evidence to link D1 – D3 to it.  The police recovered it at the back staircase of the building in Tai Kok Tsui.   I am not satisfied that D1 – D3 were in possession, control or custody of it.     

D2 and D3’s involvement with the red suitcase

56.I shall focus on the red suitcase from now on.  PW6 says that just before the chase, the one towing the red suitcase (D1) was the last in the group to walk.  The others (including D2 and D3) were one to two paces ahead of D1.  A few seconds after seeing this group, the police began to chase the group and the group began to flee.  There is no evidence that before the chase and scamper, D2 and D3, who were walking in front of D1, were aware of D1 towing the red suitcase behind them, let alone being in possession, control or custody of it.  Had the red suitcase been moved at the middle position of the group, there might have been a case for its being transported in a convoy.  The positions of D2 and D3 relative to the red suitcase are not highly suggestive of their being part of a convoy.  I am not satisfied that D2 and D3 were in possession, control or custody of the red suitcase.   

The State of the metal handle bar of the red suitcase

57.When the chase began, D1 left the red suitcase at 16 – 18 Larch Street and ran with the others.  PW8 returned shortly afterwards to lay ambush near it.  Its resting position is captured on photos 1 and 5 of P303.   The extendable metal handle bar for towing was pressed all down.  Mr. Sherry (in his para. 59 vi) queries why there is no photo “with its handle up”. 

58.I note that there is no specific evidence of the state of the metal handle bar when D1 was towing the red suitcase.  I have taken a close look and tried to extend or decline the metal handle bar at different ranges.  The result is that if a few inches is extended for towing, the metal handle bar may slide down to the base by the force of gravity.  It means that the state of the metal handle bar as seen on the photos is not probative of whether the red suitcase was being towed or not. 

The Problems with the Clock Time

59.Mr. Sherry (in his paras. 32 and 42) relies upon the Clock Time in the CCTV footage to submit on the implausibility of events (such as the GPS in the silver-coloured suitcase indicating its presence in Tai Kok Tsui only 7 minutes after the robbery in Hung Hom; the police chasing the group in Tai Kok Tsui only 8 minutes after the robbery in Hung Hom).  Such submissions must fail as the reopened prosecution case has synchronized the Clock Time with the Real Time.     

60.Mr. Sherry (in his para. 37) cites the evidence of PW16 LAU Kwok-tung, who provided the CCTV footage of Tong Chi Engineering Limited showing 3 police officers run from Fir Street to Tong Mi Road[5]. It is not correctly cited that the police told PW16 the Clock Time being slower than the Real Time by 16 minutes or that he relied on the police’s version. PW16 actually says he himself discovered the Real Time being 16 minutes faster than the Clock time by looking at the police watch. 

No Forensic evidence of certain kinds

61.Mr. Sherry (in his para. 54 iv) submits that there is no forensic connection to the suitcases such as fingerprint or DNA.  I understand that the prosecution does not rely on fingerprint or DNA here.   There is no legal principle to the effect that absent any fingerprint or DNA upon physical contact by a defendant, the prosecution must fail.  D1 was seen by PW6 – 8 to be towing the red suitcase and then abandoning it, which was guarded by PW8 shortly afterwards[6].

The Route of the chase

62.Mr. Sherry (in his para. 58) remarks that the evidence of PW6 PC 13607, who chased closely after D1 and then arrested D1, does not mention PW8 PC1359 also chasing D1 into the alley at 66 Tong Mi Road.  I find this remark inaccurate as no one in court has ever asked PW6 whether PW8 also ran into the alley.  Even if this question is asked, I wonder how PW6 could have any idea of anyone or anything behind him when he was chasing D1. 

63.Mr. Sherry (in his para. 59 iii) quotes PW6 as saying that “they ran across the alley way at 66 Tong Mi Road” whereas PW8, who followed their chase, saying that “they ran up it”.  I think this is not a correct quote.  It is clear from their oral evidence and the route, likewise drawn by PW6 (P316) and PW8 (P318), that the chase was into the alley, not “across” (in the sense of not entering) the alley. 

The Exact number of people in the group

64.Mr. Sherry (in his para. 59 i) criticizes the evidence of PW6 – 8 as they are unable to say exactly if there were 3 or 4 men in the group.  I do not find this of much significance.   

The Short duration of observation

65.Mr. Sherry (in his para. 59 ii) criticizes the short duration of their observation.  I am aware of the Turnbull guidelines.  It was actually a case of close and continuous observation of D1 by PW6.  PW6 was able to arrest D1, of whom he had never lost sight, after a chase of less than 5 minutes.  

The Relevance of the robbery

66.Mr. Sherry (in his paras. 60 – 63) refers to the robbery being a well-planned affair.  It is therefore more likely that the mastermind of the robbery had the possession of the suitcase.  I think this is pure speculation.   

The Evidence of flight

67.Mr. Sherry (in his para. 66) submits that in relation to the chase where D1 was apprehended by the police, the law requires that evidence of flight be used with caution.  Evidence of flight is incapable by itself of establishing guilt.  Only if the court is satisfied that there is no innocent reason for the defendant’s flight can this evidence be capable of supporting the prosecution’s case.  He refers to the following passage in R v Chiu Siu Tung [1996] 2 HKC 545, at 550:

[B]efore the court would be entitled to rely on the applicant’s flight … as part of the prosecution case against him, they must be satisfied beyond a reasonable doubt that this was the sole reason for his leaving, and that his flight was a deliberate and conscious attempt to avoid a true conviction in this case.

68.In applying this principle, he (in his paras. 66 – 69) submits that “[u]pon seeing other Indian/Pakistani males run from approaching police officers, it is only instinctual that D1 would do the same… out of fear of consequences” or “to avoid being implicated in their affairs”. 

69.I query why, being an Indian/Pakistani male himself, it was instinctual for him to run while abandoning the red suitcase in his possession when uniformed police were chasing some Indian/Pakistani males in front of him.  Such an affair was none of his business.  The consequence of his running away would be counterproductive and rather to get himself implicated in an unknown affair between the police and police’s targets.  He would also lose his red suitcase immediately.  He could have been perfectly at ease and also kept his red suitcase if he had continued his role as a passer-by.  I am satisfied that there was no innocent reason for his flight while abandoning his red suitcase. It is capable of supporting the prosecution’s case of at least a belief[7] on his part that it was stolen property so that he had to flee from the police and dissociate himself from the red suitcase.     

Prosecution witnesses’ credibility and reliability

70.I am satisfied that all prosecution witnesses are credible and reliable in their testimonies. 

The Verdict

71.On the aforesaid basis, the prosecution has proved the case against D1 beyond reasonable doubt.  D2 and D3 are acquitted of the charge.